89. USERRA – military service credit

Statement of Requirement: Code §§I RC 401(a)(37) and IRC 414(u); Rev. Proc. 96-49 , 1996-2 C.B. 369 ; Rev. Proc. 2017-41, 2017-29 I.R.B. 92 §5.14, 2023-37, sec 9.02(12), Notice 2010-15 , 2010-6 I.R.B. 390

Document Provision: _____

337 | Defined Benefit Plan LRM Package 08/2020 06/2026

Sample Plan Language:

Notwithstanding any provision of this plan to the contrary, contributions, benefits and service credit with respect to qualified military service will be provided in accordance with Code § IRC 414(u). In addition, the survivors of any participant who dies on or after January 1, 2007, while performing qualified military service, are entitled to any additional benefits (other than contributions relating to the period of qualified military service, but including vesting service credit for such period and any ancillary life insurance or other survivor benefits) that would have been provided under the plan had the participant resumed employment on the day preceding the participant’s death and then terminated employment on account of death.

(Note to reviewer: As added by the HEART Act, for deaths and disabilities occurring on or after January 1, 2007, Code § IRC 414(u)(9) provides that an employer may, for benefit accrual purposes, treat an individual who dies or becomes disabled while performing qualified military service as if that individual had resumed employment in accordance with USERRA reemployment rights on the day preceding the death or disability and then terminated employment on the actual date of death or disability. Any benefit accruals or contributions under Code § IRC 414(u)(9) must be provided to all such individuals performing qualified military service with respect to the employer (and other employers aggregated with the employer under Code §§I RC 414(b), (c), (m) and (o)) on terms that are reasonably equivalent. The sample language does not provide for contributions allowed under Code §I RC 414(u)(9) but may be modified to do so or to allow the employer to elect in the adoption agreement that contributions will be provided under the plan with respect to all such deceased and/or disabled individuals. Vesting service credit is required to be provided for the period of a deceased individual’s qualified military service if the individual dies while performing such service. See Notice 2010-15, Q&A-3. The sample language may also be modified to provide vesting service credit for the period of a disabled individual’s qualified military service if the individual becomes disabled while performing such service.)